With Maraga’s nomination the die has been cast

The Judicial Service Commission has crossed the Rubicon, and so alia iacta est (the die is cast).

In the year 49 BC, the Roman Senate asked Julius Caesar to surrender the armies under his command. This was a make-or-break decision for Caesar.

The world’s history was at a crossroads. No matter what Caesar decided, things would never be the same again.

He faced a difficult dilemma between submission, which also meant persecution, and rebellion. He threw himself into the arena; he crossed the Rubicon.

The Rubicon was a small, shallow river that marked the boundary between the province of Gallia Cisalpina and the province of Italy. Crossing the Rubicon was a point of no return.

According to the Roman historian Suetonius, Caesar declared “alia iacta est” (the die is cast), quoting the poet Menander, and there was truly no return. He crossed the river, triggering a bloody civil war that changed the course of history for ever.

In Kenya, the Judicial Service Commission has spoken. David Maraga has been nominated as Willy Mutunga’s successor: alia iacta est.

This nomination has caught many by surprise. Certainly, the eyes of the media were fixed on other, more familiar faces and only time will tell what led the Judicial Service Commission (JSC) to choose Justice Maraga.

Perhaps it was his pleasant, diplomatic and polite demeanour, coupled with his independent thinking.

This independent thinking led him to order an audit of the elections and a vote recount, to hear the appeal of a contentious decision of the High Court on the 2013 election date, and to recommend the removal of a fellow judge.

On January 12, 2007, Justice Maraga’s landmark decision in Joho v. Nyange ordered a recount and scrutiny of all election documents, including the ballot papers, to be done on January 15, 16 and 17 in the presence of the court’s Deputy Registrar.

He also invited the parties to agree on the modalities and who should be present.

On July 31, 2012, in the case of Center for Rights Education and Awareness & 2 others v John Harun Mwau & 6 others, Justice Maraga held that “the Sixth Schedule is an integral part of the current Constitution and has the same status as the provisions of the other Articles although it is of a limited duration.”

Maraga went ahead to say that:

I would dismiss the proposal by the Appellants in Appeal No. 74 of 2012 that the first general election be held in October or in December, 2012 as legally untenable… Given that the Principals did not dissolve the coalition and no general elections were held before 2012, and the President having been robbed of the power to dissolve Parliament, I find that the only body left to fix the date for the first general election under the current Constitution is the Independent Electoral and Boundaries Commission (IEBC) and the date of 4 March 2013 that it has fixed being within sixty days of 14 January 2013, is lawful and cannot therefore be faulted…”

And only this week, the tribunal chaired by Justice Maraga, constituted to investigate the conduct of Joseph Mutava, a fellow judge of the High Court, recommended his removal for allegedly “allocating himself a file on a case involving Goldenberg architect Kamlesh Pattni without the knowledge of the duty judge.”

Possibly, the JSC’s choice was also aided by Justice Maraga’s strong religious tenets, which seem to be sincere and genuine. Any secular society may perceive religiosity as a bias, but in the thinking of Harvard’s Prof Michael Sandel, we need to rediscover the art of honest democratic debate.

Sandel says that it is pointless to pretend that any truly democratic debate is devoid of certain underlying moral principles, religious convictions and philosophical questions.

Every judge comes into the court room with a baggage of knowledge, experiences and ways of thinking that necessarily influence his or her approach to reality. The judge must be faithful to the law, but this law does not operate in a vacuum. 

In this sense, Justice Maraga’s religious convictions and reluctance to hear cases on Saturdays is as much of a statement as any atheist’s insistence on going to work on Sundays.

Before joining the Judiciary, Justice Maraga used to practice law with Pravin Bowry, whom he joined in 1989 to form Bowry Maraga and Company Advocates.

Maraga’s tenure will not be a bed of roses. He has promised to be bold, brave and courageous. He has the enormous task of keeping the reform agenda at a high tempo, while at the same time marrying innovation, transparency and good jurisprudence with efficiency in delivering justice.

Unless Article 163 a) of the Constitution is amended, he could be on his way to preside over a Supreme Court flooded with election petition appeals, and he may also have to deal with a presidential election petition.

He will be expected to be fair and deep in his legal thought while being a good administrator. He has five short years to do so and leave a legacy.

Kenya has deep, desperate yearnings for justice, greater transparency, integrity and the pursuit of high moral character. The Judiciary was also crying for a smooth post-Mutunga transition.

A Judiciary insider and Supreme Court outsider was the right choice to mend the broken inner relations of the Supreme Court, and his tenure will make or break the Constitution.

Kenya has crossed the Rubicon, and I wish Justice Maraga all the best. The challenge will be arduous but the fruits of good labour will be rewarding. It is worth a try!

Dr Franceschi is the dean of Strathmore Law School. [email protected]; Twitter: @lgfranceschi